1994) 37 reese v. Shooting a man who has told you, in effect, that he is going to use deadly force against you and then moves toward you as if to do so is unquestionably an act of selfdefense even if, as Plakas's expert maintains, the man is attempting "suicide by police.". Plakas's administrator claimed that the self-defense story was full of holes and that, even if it were not, Drinski and the county which employed him had a constitutional obligation to do more to preserve his life than they did. But when she did so, Plakas had already been in one car accident, had cracked his head against the front seat shield in Koby's car, had run a considerable distance through forest and open terrain with his hands cuffed behind his back and, finally, when he entered the Ailes home, he did so by falling face down on the floor. The tree-sapling discrepancy is of the sort on which popular conspiracy theories are built, but it is not enough to allow a rational trier of fact to decide against Drinski. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. at 1332. The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. Plakas remained semiconscious until medical assistance arrived. Taken literally the argument fails because Drinski did use alternative methods. Plakas was turned on his back. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. ZAGEL, District Judge. 1992), a case of tragic dimension where an officer stopped to help a fallen man and eventually, as two courts held, had to kill that man in defense of her own life. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. When the police first saw Plakas, at about 9:30 p.m. on February 2, 1991, he was walking along State Road 10 in Newton County, Indiana, not far from the Illinois state line. Plakas charged [the police officer] with the poker raised. The closest thing we have to such a list is the rule which requires prison administrators to provide a law library to inmates, but even here we only require this as an alternative to providing other forms of legal assistance. The only argument in this case is that Plakas did not charge at all. Abstract. He moved toward her. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. Hyde v. Bowman et al. Nearly every court has commented on that fact that all decisions about deadly force (or any force) "must embody allowance for the fact that police officers are often forced to make split second judgments--in circumstances that are tense, uncertain and rapidly evolving." 1992). This guiding principle does not fit well here. In this record, there is expert opinion that Drinski might have been better trained to negotiate with Plakas and that he may have said one thing to Plakas that he ought not to have said, i.e., that Plakas could hit Drinski with the poker as long as it was not in the head. They noticed that his clothes were wet. See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. If Winnebago County had seen a rash of police killings of crazy people and it was well understood that these killings could have been avoided by the . See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Perras would have shot Plakas if Drinski had not. Koby gestured for Cain to back up. Whatever the facts may be, it is hard to attribute to either Drinski or Newton County the inaction of Perras, who is neither a defendant here nor under the command of Newton County. The district court's grant of summary judgment is AFFIRMED. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. Plakas means to argue that Drinski should have used all available alternatives before deadly force was exercised and that Newton County, Drinski's employer, is liable because it failed to equip and train Drinski to use such methods. The police gave chase, shouting, "Stop, Police." Tom v. Voida is a classic example of this analysis. This does not help Plakas's case because, by the time the paramedic arrived, Plakas's body had been moved, rolled over by Drinski and Perras.3 Plakas himself may have also moved; the dying man kicked over the paramedic's medical case. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. The only witnesses to the shooting were three police officers, Drinski and two others. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." 1. He also told Plakas to drop the weapon and get down on the ground. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. The proposition that an officer who beats John Doe may not use self-defense to justify killing Doe, who later attacks him, rests on the idea that because the officer's wrongful acts caused the attack, he cannot take advantage of his fear of retaliation to defend against liability. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. There is a witness who corroborates the defendant officer's version. Code Ann. The moon was bright, light was reflecting off the snow and it was easy to track Plakas who slowed as he entered a row of thick brush hedges. Further, says Plakas, a photograph of the clearing shows there was no tree there to stop Drinski, just a sapling, and there are no footprints corroborating Drinski's story of retreat. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. The details matter here, so we recite them. Again, he struck her. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing." Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994)). Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct." 7) Drewitt v. . Having driven Koby and Cain from the house, Plakas walked out of the front door. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. French v. State, 273 Ind. Id. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. 2d 443 (1989). He tried to avoid violence. Plakas implicitly argues that although Drinski's choice among available alternatives was reasonable, he should have had more choices, i.e., a trained canine, a canister of gas.6 Plakas implicitly seeks to hold Newton County liable for not providing those choices. Perhaps in recognition of this weakness in the case, Plakas offers two other theories, one of which is a minor theme of his brief, that shooting in self-defense is unjustified where the aggressor acted out of reasonable fear of police brutality. At one point Plakas pointed the poker at Drinski and said, "Either you're going to die here or I'm going to die here." It is from this point on that we judge the reasonableness of the use of deadly force . Sergeant King stood just outside it. But it is trouble which the police officer is sworn to cause, which society pays him to cause, and which, if kept within constitutional limits, society praises the officer for causing. After a brief interval, Koby got in the car and drove away. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. 1993 . After a brief interval, Koby got in the car and drove away. Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. The plaintiff there was the administrator of the estate of During the entire time in the clearing, Perras had a canister of CS repellant on his belt.2 It could have been used to disable Plakas. The details matter here, so we recite them. Plakas died sometime after he arrived at the hospital. We do not think it is wise policy to permit every jury in these cases to hear expert testimony that an arrestee would have been uninjured if only the police had been able to use disabling gas or a capture net or a taser (or even a larger number of police officers) and then decide that a municipality is liable because it failed to buy this equipment (or increase its police force). Plakas V. Drinski - Ebook written by . Drinski did not believe that Plakas was ever ready to surrender, although he was calmer for a time. At times Plakas moved the poker about; at times it rested against the ground. Plakas told them that he had wrecked his car and that his head hurt. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. At one point, Plakas lowered the poker but did not lay it down. We said, " [T]he officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. None of these devices is unfailingly effective and safe, and courts and juries are unlikely to be capable of judging when they ought to be used, The closest thing we have to such a list is the rule which requires prison administrators to provide a law library to inmates, but even here we only require this as an alternative to providing other forms of legal assistance. He stopped, then lunged again; she fired into his chest. 1977). Argued Nov. 1, 1993. Plakas brings up a few bits of evidence to do so. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. Perras took the poker. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. As Plakas moved toward Drinski, was he supposed to think of an attack dog, of Perras's CS gas, of how fast he could run backwards? Plakas v. Drinski, 19 F.3d 1143 (7th Cir. He also told Plakas to drop the weapon and get down on the ground. Hyde v. Bowman et al Filing 82 ORDER ADOPTING the 78 REPORT AND RECOMMENDATIONS as the Court's opinion, overruling Hyde's 81 Objections, dismissing all of his claims, and directing the Clerk of Court to close this case. He told Koby that this hurt him because he had burn scars on his chest and thought that if he got in the car, his chest would start to bleed. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. These cases make it clear that liability cannot be founded on the failure of Drinski to keep some sort of distance or natural barrier between himself and Plakas. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. Cited 96 times, 973 F.2d 1328 (1992) | He moaned and said, "I'm dying." From a house Plakas grabbed a fire poker and threaten the . . They followed him out, now with guns drawn. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. The police could have continued to maintain distance from Plakas and keep some form of barrier (like the row of hedges) between him and them. He fled but she caught him. Subscribe Now Justia Legal Resources . If the officer had decided to do nothing, then no force would have been used. The time-frame is a crucial aspect of excessive force cases. Roy told him that he should not run from the police. His car had run off the road and wound up in a deep water-filled ditch. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. When Cain and Plakas arrived, the ambulance driver examined Plakas. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. And, of course, Judges are far more competent to say what equipment is needed to prepare a lawsuit than they are to say what equipment is best to defend one's self against an attack by a man with a poker. And there is no reason to discount the testimony of Trooper Perras; he is neither a defendant himself nor employed by the defendant Newton County. Plakas told Cain he had been the driver of the car in the ditch, and Plakas agreed to get into Cain's car in order to be driven back to the accident scene, now about a mile from where Plakas was found. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. He can claim self-defense to shooting Plakas. Cain and some officers went to the house. Paul F. Michel (argued), Thomas McClure, Rosa A. Eliades, Elliott & McClure, Bourbonnais, IL, for Jo Ann PLAKAS. Perras would have shot Plakas if Drinski had not. Cain left. He moved toward her. This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. The award of summary judgment to the defense in deadly force cases may be made only with particular care where the officer defendant is the only witness left alive to testify. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. He saw Plakas cock the poker over his head for a swing and, when Plakas was two arms lengths away, he fired once at Plakas' chest. This is not a case where an officer claims to have used deadly force to prevent an escape. Justia. right of "armed robbery. In Carter, such an alternative was not merely speculative; the arrestee was employed inside a prison where he would not have had a gun on his person. Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. (Notes) Sherrod v. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. This is what we mean when we say we refuse to second-guess the officer. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 Here it is beyond dispute that, under the Constitution, the police could reasonably (1) arrest Plakas for drunk driving after he exhibited familiar signs of intoxication; (2) track down an escaping arrestee; (3) draw and point weapons after Plakas armed himself and attacked an officer; (4) pursue Plakas into the clearing after he committed a violent offense and was a danger to himself; and (5) try to talk Plakas into disarming himself and surrendering. Plakas V Drinski. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. The fact remains that both officers say that Drinski's retreat occurred and that it ended by virtue of some circumstance other than Drinski's volition. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. The only test is whether what the police officers actually did was reasonable. Then Plakas tried to break through the brush. 2d 443, 109 S. Ct. 1865 (1989). When Cain and Plakas arrived, the ambulance driver examined Plakas. The clearing was small, but Plakas and the officers were ten feet apart. 378, 382 (5th Cir. She fired and missed. 1992). Plakas told Cain he had been the driver of the car in the ditch, and Plakas agreed to get into Cain's car in order to be driven back to the accident scene, now about a mile from where Plakas was found. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). Justia. The record before us leaves only room for speculation about some circumstances. He tried to avoid violence. Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 2610, 77 L. Ed. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. Plakas refused medical treatment and signed a written waiver of treatment. Cain and Koby were the first to enter. et al. Plakas argues there is enough evidence to cast doubt on the defendants' self-defense claim, given the low threshold that courts have set for refuting self-defense in deadly force cases both civil and criminal. Plakas complained about being cuffed behind his back. 1992). The officers told Plakas to drop the poker. Second, Drinski said he was stopped in his retreat by a tree. Subscribe Now Justia Legal Resources. Koby frisked Plakas and then handcuffed him, with his hands behind his back. Plakas remained semiconscious until medical assistance arrived. Drinski blocked the opening in the brush where all had entered the clearing. They talked about the handcuffs and the chest scars. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." 2d 1116, 96 S. Ct. 3074 (1976). We always judge a decision made, as Drinski's was, in an instant or two. Joyce and Rachel helped him. Tom v. 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